Cassen v. Cassen

• Decision Date: 28 April 1947
• Docket Number: No. 4-8179.,4-8179.
• Citation: 201 S.W.2d 585
• Parties: CASSEN v. CASSEN.
• Court: Arkansas Supreme Court

201 S.W.2d 585

CASSEN v. CASSEN.

No. 4-8179.

Supreme Court of Arkansas.

April 28, 1947.

Appeal from Pulaski Chancery Court; Frank H. Dodge, Chancellor.

Suit for divorce by Ernest J. Cassen against Pauline M. E. Morin Cassen. From a decree granting a divorce, the defendant appeals.

Decree reversed and cause dismissed.

Quinn Glover and Carl Langston, both of Little Rock, for appellant.

Price Shofner and Lee Cazort, both of Little Rock, for appellee.

McFADDIN, Justice.

In this divorce suit, appellant is the wife, and appellee, the husband. They were married in Massachusetts in 1929, and have two children. In 1942 appellee filed a suit for divorce in Florida on the ground of cruelty. The divorce was denied by the Florida Circuit Court, and that holding was affirmed by the Supreme Court of Florida on March 23, 1945, in the case of Cassen v. Cassen, 155 Fla. 768, 21 So.2d 458.

The appellee came to Arkansas for a divorce. He arrived here on January 3, 1946, and rented a room by the week at a hotel in Little Rock. His suit for divorce was filed on March 6, 1946; and, until after his suit had been filed, he did not evidence by affirmative acts any intention to reside permanently in Arkansas. The appellant, a resident of Massachusetts, was summoned by warning order and notified by attorney ad litem. She appeared specially for the sole purpose of challenging the jurisdiction of the Arkansas court; and she claimed that the appellee was not a bona fide resident of Arkansas.

From a decree finding appellee to be a bona fide resident, and granting him a divorce, there is this appeal, which necessitates a re-examination of our holding in Squire v. Squire, 186 Ark. 511, 54 S.W.2d 281, in the light of subsequent cases which likewise involved the question of bona fide residence as essential to jurisdiction of the court to grant a divorce.

In Squire v. Squire, in speaking of a party who was granted a divorce, we said: "She frankly admitted that she came to this state to obtain a divorce; that she would remain here if she could secure employment to support herself and child. Even though she moved to this state to bring a divorce suit and had the intention of leaving after the divorce was granted, this would not deprive the court of jurisdiction, if she were actually and in good faith a bona fide resident for the period prescribed by the statute."

Before a person can become a resident of this state so as to have his marital status determined by the courts of this state, he must, in truth and in fact, be a bona fide resident of the state, as hereinafter defined. The following cases attest that this court had repeatedly indicated that the Squire case should be thus modified. In Barth v. Barth, 204 Ark. 151, 161 S.W.2d 393, in denying a divorce, we held that bona fide residence was required. In Gilmore v. Gilmore, 204 Ark. 643, 164 S.W.2d 446, 447, we said: "In the instant case there was want of jurisdiction if appellee were not a bona fide resident of Arkansas."

In Feldstein v. Feldstein, 208 Ark. 928, 188 S.W.2d 295, 297, in denying a divorce, we said: "The evidence in this case is not sufficient to show that appellee ever became a bona fide resident of Arkansas."

In O'Keefe v. O'Keefe, 209 Ark. 837, 192 S.W.2d 556, 557, we quoted from Mohr v. Mohr, 206 Ark. 1094, 1095, 178 S.W.2d 502, as follows [209 Ark. 837, 192 S.W.2d 557]: "`Without lengthening this opinion to analyze the holdings of other courts, we hold that there must be overt acts sufficient to demonstrate a real and bona fide intent to acquire residence here before the State of Arkansas — as a silent third party to every divorce suit here — will allow its courts to be used as the haven of the transient and dissatisfied spouse.'"

In Porter v. Porter, 209 Ark. 371, 195 S.W.2d 53 we expressly stated that Squire v. Squire had become a controversial holding. In Tarr v. Tarr, 207 Ark. 622, 182 S.W.2d 348 Mr. Justice Knox, in his splendid dissenting opinion, pointed to the conclusion we are now reaching in the present case.

A divorce decree in this state, to fulfill all the requirements for full faith and credit under the United States Constitution, art. 4, § 1, can determine status only when there is a bona fide residence in this state. We quote from Section 111 of the American Law Institute's Restatement of the Law on Conflict of Laws: "A state cannot exercise through its courts jurisdiction to dissolve a marriage when neither spouse is domiciled within the state."

So, now, we overrule Squire v. Squire, supra,¹ insofar as it holds that a person who comes to this state for the purpose of obtaining a divorce and who does not have the animus manendi (which has always been held an essential ingredient of residence), may be said to be a bona fide resident of this state; and by "bona fide residence", we mean the same as domicile.² We quote from, and adopt as our own and as ruling in this state, the language of the United States Supreme Court in Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577, 157 A.L.R. 1366: "Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicil. Bell v. Bell, 181 U. S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366. The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted."

This essential as to bona fide residence must exist, not only at the time the decree is rendered, but also must have existed at the time the suit was filed. Parseghian v. Parseghian, 206 Ark. 869, 178 S.W.2d 49; Porter v. Porter, 209 Ark. 371, 195 S.W.2d 53; O'Keefe v. O'Keefe, 209 Ark. 837, 192 S.W.2d 556.

Tested by the rule of these cases, the appellant failed to prove that he was a bona fide resident of Arkansas at the time his suit was filed; and his subsequent affirmative acts, in an endeavor to establish such residence, cannot be allowed any retroactive effect. So, the decree of the chancery court is reversed, and the cause dismissed, with appellee to pay all costs of the chancery court and this court.

SMITH, McHANEY and HOLT, JJ., dissent.

1. An interesting discussion of the Squire case may be found in Section 134 et seq., "Arkansas Conflict of Laws", a volume published in 1938 by Dr. Robert A. Leflar, now Dean of the Law School of the University of Arkansas.

2. See 17 Am.Juris. 278 and 279, "Divorce and Separation", Sections 249, 250; 27 C.J.S., Divorce, § 76, page 644 et seq.; annotations in 106 A.L.R. 6 and 159 A.L.R. 496, "What Constitutes Residence or Domicil Within State for Purpose of Jurisdiction in Divorce." See also the article on "Extraterritorial Divorce" by Prof. Ernest G. Lerenzen in Yale Law Journal, Vol. 54, page 799.

McHANEY, Justice (dissenting).

Appellee was granted a divorce from appellant by decree of June 27, 1946, on the ground of three years separation without cohabitation, § 4381, sub-section seventh of Pope's Digest. That they have lived separate and apart, without cohabitation, for more than three consecutive years prior to this action is undisputed in this record. Appellant did not testify, in the action, either as to appellee's residence in this State, or as to the three years separation without cohabitation, and she offered no evidence in her behalf. It is also undisputed, in my judgment, that he has been a bona fide resident of this State for more than three months next before the decree herein and for two months next before the commencement of his action. Section 4386 of Pope's Digest so provides in this language: "The plaintiff, to obtain a divorce, must prove, but need not allege, in addition to a legal cause of divorce: First. A residence in the State for three months next before the final judgment granting a divorce in the action and a residence for two months next before the commencement of the action."

Appellee was asked on cross-examination the question, "When you left Florida, you came here entirely for the purpose of getting a divorce, didn't you?" and answered, "Not entirely, I intended to stay here." And again he was asked, "If you obtain a divorce in this court, what are your intentions? Are you going back to Florida, in other words?" and answered, "My intentions are staying here and going into the hotel business, as I have prospects of getting one of the hotels here in Little Rock to operate." He had been engaged in the hotel business in Florida prior to coming to Little Rock.

It is undisputed that he came to Little Rock on January 3, 1946. His suit for divorce was filed March 6, 1946, and the undisputed proof shows that he has resided here continuously from January 3, 1946. He has been living at the Gleason Hotel. Shortly after coming here he became a member of the Little Rock Lodge of Elks by transferring his membership in another lodge to this and was at the date of trial an officer in said Elks lodge, being night manager and is regularly employed. He has assisted the U. S. Marshal's office in the handling of prisoners and accompanied Deputy McBurnett on trips to several points in this State, being paid therefor by the Government.

I think this evidence is sufficient, in the absence of any showing to the contrary, that appellee is a bona fide resident of this State and has been for the period of time required by said statute. We have so held in several cases where the showing of bona fide was no greater, if as great, as here. Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242; Brickey v. Brickey, 205 Ark. 373, 168 S.W. 2d 845; Buck v. Buck, 205 Ark. 918, 171 S.W.2d...